WHEREAS,
it
is
commonly
known
that
healthy
nontidal
wetlands
reduce,
store,
and
filter
stormwater
runoff
and
can
help
remove
harmful
bacteria
and
pollutants,
thereby
protecting
sources
of
Delaware’s
water
supply;
and
WHEREAS,
it
is
also
commonly
known
that
nontidal
wetlands
provide
flood
storage
capacity
thereby
protecting public
and
private
property
from
flooding
and
the
resultant
financial
and
personal
impacts
associated
therewith;
and
WHEREAS,
the
State
has
acted
to
protect
tidal
wetlands,
and it currently
relies
on
federal
regulations
enforced
by
the
United
States
Army
Corps
of
Engineers
pursuant
to
the
Clean
Water
Act to protect the State’s nontidal wetlands;
and
WHEREAS,
the
U.S.
Environmental
Protection Agency
(EPA) proposed a
dramatic reduction
in
protections under
the
Clean
Water
Act,
leaving
nontidal
wetlands
in
Delaware
without
adequate
federal
or
State
protection;
and
WHEREAS,
the
EPA
rule
reducing
these
protections
became
final
on
June
22,
2020,
stripping
protections
from
thousands
of
acres
in
Delaware;
and
WHEREAS,
it
is
important
that
the
State
modify
its
existing
tidal
wetlands
permit
program
to
add
necessary protections
for
nontidal
wetlands,
as
Delaware
is
the
only
state
in
the
mid-Atlantic
region
without
state-level
protections,
and
thus
is
especially
vulnerable
to
the
changes
proposed
at
the
federal
level;
and
WHEREAS,
protection
of
nontidal
wetlands will
be
consistent
with the
current
policy
of
this
State to
preserve
and
protect
the
productive
public
and
private
wetlands
to
prevent
their
loss
and
impairment
and
consistent
with
the
historic
right of
private
ownership
of
lands; and
WHEREAS, unlike a federally administered program, a State program provides benefits to the public through local knowledge and accessibility resulting in responsiveness, convenience, and efficiency.
NOW, THEREFORE:
BE IT RESOLVED by the Senate and House of Representatives of the 151
st
General Assembly of the State of Delaware, with the approval of the Governor, that the Delaware Department of Natural Resources and Environmental Control (Department) is authorized and directed to engage the Environmental Protection Agency and the U.S. Army Corps of Engineers to identify the overall structure of a State nontidal wetlands permitting program.
BE IT FURTHER RESOLVED that the State has the capability to administer, in accordance with 40 C.F.R. part 233, the dredge and fill permitting program established in Section 404 of the federal Clean Water Act (CWA), Pub. L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq., and rules promulgated thereunder, for the purposes of permitting dredge and fill material.
BE IT FURTHER RESOLVED that, for the State to receive this authority, there must be an established structure and resources to support a nontidal wetlands program to be granted official federal approval.
BE IT FURTHER RESOLVED that, in engaging the federal agencies, the Department will need to identify administrative, fiscal, and legal requirements to support a State program and will need to determine where state laws and administrative procedures apply, and that these align with, and do not conflict with, federal requirements.
BE IT FURTHER RESOLVED that the Department shall attempt to identify which nontidal wetlands currently have federal jurisdiction after the recent EPA rule changes and which nontidal wetlands do not have regulatory jurisdiction under CWA Section 404 at the federal level.
BE IT FURTHER RESOLVED that the Department will prepare a report on the findings, structure, and resource needs to support a State nontidal wetlands program and submit the report to the General Assembly and the Governor no later than one year from the enactment of this resolution.
BE IT FURTHER RESOLVED that, using the results of the report, the Department will determine whether a federal Statewide Programmatic General Permit or full Assumption is the appropriate action to administer the CWA Section 404 program at the State level.
BE IT FURTHER RESOLVED that, pending the results of the final report, appropriate legislative establishment may be considered for a State nontidal wetlands permitting program.
